Eleventh Circuit Circuit Reverses After Appellate Counsel Initially Files Anders Brief
Since the Eleventh Circuit has a new Chief Judge now (Judge Dubina passed the gavel to Judge Carnes as of August 1), I thought I’d take a few minutes to mention two interesting opinions issued by the Eleventh.
(1) United States v. Fries, No. 11-15724. If you handle federal or state criminal appeals, you’re probably familiar with filing Anders briefs (Anders v. California, 386 U.S. 738 (1967)) when you’ve searched the record, but are unable to discover any appealable issues. Often, the courts accept Anders briefs without question. However, in Fries, the Eleventh Circuit declined to accept appellate counsel’s Anders brief, and instead directed counsel to brief two specific issues:
(1) whether the district court effectively removed the burden of proof regarding an element of the 18 U.S.C. § 922(a)(5) offense by instructing the jury that the sale of a firearm to a licensed dealer was an exception to the prohibition on sales to non residents that did not apply in the case; and(2) whether the evidence was insufficient to convict when no evidence was presented as to whether the buyer of the firearm was a licensed dealer.
- First, the case illustrates a rule often invoked in criminal (and civil, for that matter) appeals: if you don’t object or make a specific argument below, you’re generally going to be precluded from raising that argument on appeal. In his brief, Curbelo argued that the DEA obtained GPS tracking data from vehicles driven by Mr. Diaz and another individual named Herman Torres in violation of the Fourth Amendment, as held in United States v. Jones, 132 S.Ct. 945, 948 (2013). However, the Court refused to entertain such argument because defense counsel never moved to suppress the DEA’s GPS tracking evidence.
- Second, the Court addressed another topic that often arises in criminal appeals: ineffective assistance of counsel. Although Curbelo argued that his attorney was ineffective for failing to move to suppress the DEA GPS tracking evidence, the Court refused to consider the claim on the merits because the record was not sufficiently developed.
- Third, the Court addressed Curbelo’s argument that the evidence was insufficient to support the sentencing enhancement for a conspiracy involving more than 1,000 marijuana plants. The Court quickly disagreed. In so doing, the Court noted that because the number of plants was determined by a jury, Alleyne v. United States,133 S.Ct. 2151 (2013), which was decided after the case was briefed and oral argument was held, required affirmance of the sentencing enhancement.
- Finally, the Court rejected Curbelo’s Confrontation clause argument as to the Government’s use of English-translation transcripts of recorded conversations at trial. In it’s analysis, the Court focused on Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) and Crawford v. Washington, 541 U.S. 36 (2004).